Getting the balance right – more on Gowers

For anyone with an interest in copyright, patents, trademarks and the panoply of laws, licenses and regulations surrounding intellectual property the publication of Andrew Gowers’ ‘Review of Intellectual Property’ was keenly awaited.

Of course, since it was released as part of the pre-Budget report its coverage in the mainstream media was largely drowned out by discussion on fuel duty, taxation, education and the political prospects of Chancellor Gordon Brown.

However the blogosphere – or those parts of it occupied by the copyfighters, the record industry and campaigners against software patents – was buzzing with comments, analysis, critiques and the odd compliment.

Unusually for Government reports many of the people commenting also provided input to the report itself, with over five hundred submissions made to the review team in a remarkable example of open government.

The report also builds on a great deal of previously published thinking about the future of intellectual property, including an important document called the Adelphi Charter, published earlier this year by the RSA.

Key areas covered include the suggestion that it should be made legal to copy CDs to music players or computers, that a European patent is worth pursuing and that the term of copyright in performances should remain unchanged, and so far it has been generally well-received.

John Howkins, who helped draw up the Adelphi Charter puts it succinctly when he says ‘Its recommendations are rational and proportionate. In most cases, it’s more radical and better than expected.’

One reason it is better than expected is probably that the team working on the review took an ‘evidence-based’ approach to policy, and actually commissioned its own research on key aspects of the issue.

The British Screen Advisory Council was asked to look at the question of orphan works, material which is probably in copyright but where the rights holder cannot be identified, and the Centre for Intellectual Property and Information Law, Cambridge University was asked to examine the case for extending the term of copyright

Too much policy is made on the basis of assumptions, prejudice, perceptions of what will play well with the public – or the media – or just plain misinformation, as the various reports into the runup to the Iraq War have made clear.

Here, however, we have a careful dissection of the evidence, research which is academically rigorous and as objective as such things ever can be, and well-argued conclusions.

About the only people who seem really unhappy are the recording artists and their trade associations, who went to the trouble of putting a full-page advert in the Financial Times calling for ‘fair play’ for musicians, as if having legal protection for fifty years was not more than enough to enable them to profit from their performances.

The research commissioned by Gowers made it abundantly clear that there is no economic case for extending the term of copyright, and there is certainly no moral case for depriving society of the ability to reuse, remix and reissue this material as it enters the public domain.

In fact, there is a case for going to the international bodies and arguing that the excessive length of copyright in countries like the United States, where the monopoly continues for 95 years, should be reduced to a more sensible length.

The evening before the report was published I went along to a debate on the way music is being used inside virtual worlds like Habbo Hotel and Second Life, organised by the Music Ally consultancy.

One of the speakers was Barney Wragg, ‘Head of Digital’ for EMI Music, whose sole concern was with finding ways in which musicians could make money out of every possible use of their songs. ‘There has to be compensation for the people who create the intellectual property’, he said at one point, claiming that ‘it’s sickening to see other people create value’ from songs.

The greed of the record companies, and their sense that it should all belong to them completely fails to acknowledge that many people contribute to any creative work, especially music. Aside from musical influences there are contributions made by sound engineers, instrument makers and producers. All of this is to be forgotten in the adulation of the ‘creator’ who deserves to reap all the benefit – all the revenue streams – from their work.

It also wilfully ignores the fact that copyright is a limited monopoly, a bargain between the creator and the wider public that gives certain rights, but not all. I don’t have to pay to play a CD to a group of friends in my bedroom, but Wragg believes I must pay if I’m going to play the same song to my virtual friends in my Second Life habitat.

Another key proposal is that the enforcement of intellectual property rights should be strengthened, with more serious penalties for infringement.

We can live with better enforcement if the framework of law is fairer and acceptable, altohugh the failure to distinguish clearly between commercial piracy of music, books and DVDs and private copying or downloading is a bit worrying because it could allow the record industry to use legal measures intended to deal with organised criminals against children or their parents, as we have seen happen too often in the United States.

Of course this proposal, like everything else in the review, is only a recommendation. Gowers marks the latest stage in the ongoing debate about intellectual property, and we will have to see which of the suggested measures make it into law.

The recording artists who paid for the advert in the Financial Times know that the deal is not yet done, so we will have to hope that their lobbying is not successful.

One factor which we should bear in mind is that when Gordon Brown commissioned the review last December he must have expected to be Prime Minister by now, able to decide for himself how to take the recommendations forward and empowered to dispatch his ministers to Brussels and elsewhere to argue Britain’s case for changing the international framework of copyright and patent law.

Instead he is still in the Treasury, and will have to deal with Tony Blair if he wants to push through any of the measures in the short term. Sadly the Prime Minister, happy to take a holiday at Cliff Richard’s Barbados [see the comment below] hideaway, may not have such a rigorous or evidence-based approach to issues like term extension as his Chancellor.